Public Interest Litigation in Kenya: The New Constitutional Context

1. Public Interest Litigation in Kenya: The New Constitutional Context Legal Education and Public Interest Lawyering in East Africa: The Role of University Based Law Clinics 5th – 6th February, 2014 By: Allan Maleche Executive Director

2. Outline • About KELIN • Introduction • PIL under the old Constitution of Kenya • PIL under the Constitution of Kenya 2010 • Examples of PIL cases • Challenges • Lessons learnt • Conclusion

3. About KELIN • KELIN is a human rights NGO working to protect and promote HIV-related human rights in Kenya. We do this by: providing legal services and support, training professionals on human rights, engaging inadvocacycampaigns that promote awareness of human rights issues, conducting research and influencing policy that promotes evidence-based change

4. Introduction: • Public interest litigation (PIL)is litigation that focuses on issues of importance to the public at large, or for a major section of the public and whose outcome is likely to impact not only on the individual litigant but also on a larger section of the society. • According to Justice Yatindra Singh of the High Court of Allahabad, India, “PILs are like alarm clocks. They tell the government: don’t sleep, please get up”.

5. PIL under the old constitution of Kenya • Bill of rights was narrow largely focused on civil and political rights and did not mention socio-economic rights • Before the promulgation of the Constitution of Kenya 2010, PIL was hard if not almost impossible to sustain because of strict rule of standing. • In El-Busaidy v. Commissioner of Lands & 2 others(2002) 1KLR (E&L) the Court maintained that matters of PIL can only be litigated by the Attorney General. • The mode of appointment Judges was not clear and transparent and it was largely a presidential decision that could not be questioned .

6. PIL under the Constitution of Kenya 2010 • The following changes happened to make litigation of PIL much better. • Article 2(4) and (6) application of international laws and ratified treaties • Chapter IV an expansive bill rights that included socio-economic rights: • Article 20(1) b directs court to interpret the bill of rights that favours the enforcement of the right • Article 22 widened the locus on who can file a PIL , made provision for simple rules that did away with technicalities and filing fees. Article 23 reliefs were broadened to include compensation

7. What changed • Chapter 10 on Judiciary: Mode of appointment and removal of Judges from office, Constitution of the Judicial service commission, public interviewing of new judges, vetting of judges and magistrates, establishment of a supreme court • Article 258 – Every person has right to institute court proceedings relating to contravention of the Constitution

8. What cases have before the court • The following areas have come up for litigation under the Constitution of Kenya 2010 : • Right to health • Right to information • Right to housing • Right to education • Right to vote • Prisoners rights • Freedom of association ( registration of LGBTI organisations)

9. Examples Of Cases • Satrose Ayuma & 11 others vs. The registered trustees of the Kenya Railways staff retirement benefits scheme & 2 others Petition no 65 of 2010 (right to housing) • PAO & 2 others vs. The AG Petition no 409 of 2009 (right to health and access to medicines) • Nathan Shimenyi vs. Kenyatta National Hospital Petition 282 of 2012 ( detention of patient in hospital failing to pay hospital fees) • Daniel Ngetich&2 others vs. The AG & 3 others (Detention of TB patients in prison)

10. Examples Of Cases • RM vs. Commissioner of Prisons and four others ( rights of transgender prisoners) • Alexander Ngungu vs the Commissioner General of Police (Right to dignity of transgender persons) • Denis Nzioka vs NGO Board and AG (denial of registration of an LGBTI organisation)

11. Challenges faced • Lack of technical expertise among the lawyers on litigation social economic rights • Reluctance by Judges to employ innovative remedies for fear of being labelled judicial activists • Confidentiality of clients living with stigmatized diseases • Length of time in which court cases are determined

12. Lessons Learnt • Need for lawyers to be trained on litigating on new areas within the Constitution • Need for increased dialogue among Judicial officers from the region on some of the topical issues • Need to file well drafted and thought out pleadings including parties filing the case and those being sued and to consider crafting innovative remedies . • Choice of counsel. You should look at the experience of the counsel, can he or she articulate, can he present the facts, can he present your case, and can they push your agenda forward in court. • Need ensure continued legal literacy programmes take place with affected communities and involve them in the process

13. Conclusion • “ A country may have the best written bill of rights in the world, but if the state organs and institutions, and leaders at all levels, and every individual in the country are not committed and do not pay attention to them, then the human rights so guaranteed are not worth the paper(s) they are written on”. (Uganda Commission of inquiry into violations of Human Rights in Uganda )

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